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Judgment
[Per: Justice Rakesh Kumar Jain (MJ)] (ORAL):
This Appeal is directed against the Order dated 01.12.2022, passed by the National Company Law Tribunal, Hyderabad Bench, by which an Application filed by the Successful Bidder, in the e-Auction for the sale of business for KVK Nilachal Power Pvt. Ltd (Corporate Debtor), seeking for an Order to confirm the sale of the Corporate Debtor as a going concern, without Resolution of the Corporate Debtor and to approve the relieves/waivers/concessions sought by it, has been allowed and disposed of in terms of the directions contained in the said Order.
The present Appeal has been filed by the Principal Commissioner of Customs alongwith an Application bearing I.A. No.720/2023, seeking condonation of delay of 12 days in filing of this Appeal.
Since the main Appeal cannot be heard and decided until and unless the Application for Condonation of Delay is decided, therefore, we have called upon the Counsel for the Appellant/Applicant to make his submission on the Application for Condonation of Delay at the first instance.
While arguing the Application for Condonation of Delay, Counsel for the Applicant/Appellant has submitted that the Appellant was not a party to the Interlocutory Application and was not having any knowledge about the Order dated 01.12.2022. It is submitted that the Liquidator filed I.A. No.475/2022 for the same relief in which the Appellant was a contesting Party. The said Application came up for hearing on 10.03.2023 and at the time of hearing of the said Application, the Liquidator cited the Order already passed in I.A. No.960/2022 dated 01.12.2022, on the basis of which, I.A. No.475/2022 filed by the Liquidator was dismissed.
Counsel for the Appellant has submitted that though the Impugned Order was passed on 01.12.2022 but the Appellant came to know about this Order on 10.03.2023, in the hearing of the Application bearing I.A. No.475 of 2022 by the Liquidator, therefore, according to the Appellant the Limitation to file the Appeal started from 10.03.2023.
The Appellant has averred in the Application that after coming to know about the Order dated 01.12.2022, on 10.03.2023, the Appellant immediately pursued the web copy of the Order dated 01.12.2022, on 10.03.2023 itself and took administrative steps for filing of the Appeal. It is submitted that the Limitation has been counted by the Appellant from the date of knowledge i.e., 10.03.2023 and a period of 30 days calculated from the said date expired on 09.04.2023 and a further period of 15 days would have expired on 24.04.2023 but the Appeal has been filed on 21.04.2023. No reason has been given except that the Appeal has been filed within the extended period of 15 days.
We have heard Counsel for the Applicant and perused the record of the Application.
Section 61 of the Code deals with the Appeals to be filed before the Appellate Authority. Section 61 is being reproduced as hereunder:
“61. Appeals and Appellate Authority. -
(1)Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal.
(2)Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.
(3)An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely: –
(i)the approved resolution plan is in contravention of the provisions of any law for the time being in force;
(ii)there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period;
(iii)the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board;
(iv)the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or
(v)the resolution plan does not comply with any other criteria specified by the Board.
(4)An appeal against a liquidation order passed under section 33, or sub-section (4) of section 54L, or sub-section (4) of section 54N, may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order.
(5)An appeal against an order for initiation of corporate insolvency resolution process passed under sub-section (2) of section 54-O, may be filed on grounds of material irregularity or fraud committed in relation to such an order.”
Section 61(1) provides that any person who is aggrieved against the Order of the Adjudicating Authority can prefer an Appeal before the Appellate Authority.
Section 61(2) lays down the period within which the Appeal under Section 61(1) is to be filed. The said period has been fixed as 30 days. However, Section 61(2) proviso further provides for extension of time beyond the period of 30 days upto 15 days but not beyond that. In case the Applicant, filing the Appeal, alongwith Application of Condonation of Delay, is able to satisfy the Appellate Authority that there exists a sufficient cause for not filing the Appeal within the prescribed time then it can be entertained.
It is pertinent to mention that the Hon’ble Supreme Court in the case of `National Spot Exchange Limited’ Vs. `Mr. Anil Kohli, Resolution Professional for Dunar Foods Limited’ in Civil Appeal No. 6187/2019, dealing with this aspect of the matter that as to whether the Appellate Authority has the jurisdiction to condone the delay beyond the period of 15 days provided in the proviso to Section 61(2) of the Code held that:
“11.2In the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, reported in (2004) 2 SCC 130, in paragraphs 36 & 37, it is observed as under:
“36.We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be contravention of a statutory provision.
37.As early as in 1911, Farwell, L.J. In Latham v. Richard Johnson & Nephew Ltd. (1911-12) All ER Rep 117 observed: (All ER p. 123E) “We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o’ the wisp to take as a guide in the search for legal principles”
Thus, considering the statutory provisions which provide that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution.
12.In view of the afore-stated settled proposition of law and even considering the fact that even the certified copy of the order passed by the adjudicating authority was applied beyond the period of 30 days and as observed hereinabove there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days.”
Though the Limitation has to be counted from the date of the passing of the Order i.e., 01.12.2022 and in such circumstances, the period of 30 days would have expired on 01.01.2023 and the extended period of 15 days by 16.01.2023. However, even if the argument of the Appellant is accepted that since it was not a party in the I.A. in which the Impugned Order was passed and came to know only on 10.03.2023 and thereafter, administrative steps were taken for filing the Appeal, then it is really strange as to why the Appeal could not be filed by the Department of Custom (Appellant) within a period of prescribed 30 days. No explanation has been given anywhere in the Application for not filing the Appeal within the time prescribed under the Statute. It is rather the case of the Appellant that the Appeal has been filed only 3 days before the expiry of the extended period of 15 days without giving any further explanation about the laxity on the part of the Appellant in not filing the Appeal.
It is pertinent to mention that the Legislator has consciously provided a period of 30 days for the purpose of filing an Appeal and has provided only 15 days window to the Appellate Authority to entertain an Appeal by condoning the delay beyond the period of 30 days if it is satisfied about the existence of a sufficient cause assigned by the Appellant for not approaching the Appellate Authority within the time prescribed.
In the case of `National Spot Exchange Limited’ (Supra), the Hon’ble Supreme Court has categorically held that the Appellate Authority does not have the jurisdiction to extend even a day beyond the extended period of 15 days. In such circumstances, the Appellant should have been vigilant enough to have filed its Appeal firstly within a period of 30 days which has been given to it by the Statute and if it could not have filed the Appeal within that period, then there should have been some justifiable reason much less sufficient cause for the purposes of satisfying the Appellate Authority for not filing the Appeal in time. The sufficient cause is just conspicuous by its absence in the Application in question and also during the course of hearing in the arguments of the Counsel for the Appellant.
In such circumstances, we are of the considered opinion that the Appellant has been pursuing this Litigation very casually and has failed to make out a case for the purpose of condonation of delay.
The Application is thus found to be devoid of any merits and the same is hereby dismissed. No Costs.
Comp. App. (AT) (CH) (Ins.) No.218/2023:
Since we have dismissed the Application for Condonation of Delay by an Order of the even date, therefore, this Appeal is not duly constituted and the same is also hereby dismissed. No Costs.